June 20, 2013

The Problem of Mass Fact Finding

Another
issue in veterans law exists at the intersection of evidence and civil
procedure. A central feature of veterans
law is its size. When a system handles
millions of claims for benefits each year, it is inevitable that a great number
of them look very similar. For example,
hundreds of thousands of hearing loss claims are filed each year. Is there a better way to handle these than
adjudicating them one by one?

The
obvious answer from general law is the class action. Michael D. Sant’Ambrogio and Adam S. Zimmerman
have taken a shot at making it work in The
Agency Class Action, 112 Colum. L. Rev. 1992 (2012). However, veterans law has many features that
resist such solutions. The most
important is the extraordinarily weak finality.
If a class action is lost, who can come back and reopen the claim with
new and material evidence? If it is any
member, then it is likely that large class actions will never end (unless
granted) because there will always be at least one member who wants to try
again. What about all those with similar
fact patterns who are not part of the class?
Perhaps their disability had not yet manifested or perhaps they had not
even retired from service yet. Are they
bound by the class decision? If so, can
they independently pursue reopening? The
Supreme Court seems to be discouraging overly large classes of late, so what
about much smaller classes? At some
point, countless thousands of small classes become more of an administrative
headache than just adjudicating each claim separately.

The
real problem seems to be lack of global fact finding. Is X as least as likely as not the cause Y if the veteran has a particular symptom history and risk factors A, B, and C? To the extent that you have a clear answer to
such questions, every case presenting that fact pattern should have the same
answer. Unfortunately, in practice,
medicine is as much art as it is science, and when claims are based upon the
opinions of individual doctors, veterans with essentially identical conditions
can face different results when their claims are adjudicated. For hard questions of medicine, VA should
have a speedy and effective mechanism to generate one clear answer that is
applied to all similar cases.

One such mechanism is to create presumptions by regulation. Those can ensure that all similar claims receive
similar treatment. However, drafting and
issuing a regulation is a difficult, multi-year process and can draw a lot of
political heat. VA does not have a great
track record in drafting timely regulations.
For example, it commenced a comprehensive rewrite of its adjudication
regulations a decade ago that is still far from complete. When it takes years to draft regulations, how
often will the science have changed before the final rule is issued? Even if you produce a final rule, how long
will it take to revise it in light of new evidence? The problem seems to be only growing worse,
as the time it takes to issue regulations increases and the speed at which new
scientific discoveries are announced accelerates.

The
idea that most intrigues me is that of having VA simply issue global factual
finding through the Federal Register. This
approach was endorsed by the Supreme Court in Heckler v. Campbell, 461 U.S. 458 (1983), but seems
underutilized. VA obtains over a million
expert medical opinions each year. Would
not justice be better served if the time of those experts was spent working on
published decisions matrices? Image a
system that focused initially on collecting basic information that could be
plugged into a decision tree that produced results such as, “A Veteran who was
exposed to X, will be granted service connection for Y if it manifests within Z
years, unless the veteran has risk factors A, B, and/or C.” To resolve the most difficult cases, the
decision matrix could even include categories for which the adjudicator was
directed to seek an opinion when there were enough conflicting factors to make
one prudent. There may be many good
reasons why the Heckler approach has
not become more common, and further thoughts on its limitations or
applicability are welcome.

In
any event, the core problem should have a solution: Instead of providing uniform answers to
similarly situated veterans, we obtain millions of medical opinions that create
a risk of conflicting outcomes. (Whether
this is a problem in reality is a great empirical question. I am sure anecdotes are not hard to find, but,
as the saying goes, the plural of “anecdote” is not “data.”) This is yet another source of great articles
waiting to be written.